Case Law Details
G. Narasiman Vs. ITO (ITAT Chennai)
Belated return filed under section 139(4) could not be revised under section 139(5). Therefore, revised return filed by assessee was invalid and to frame assessment by considering such return as return filed under section 139(1) was in conflict with charging interest under section 234A for delay in filing of return. Therefore, levy of interest under section 234A was deleted.
FULL TEXT OF THE ITAT ORDER IS AS FOLLOWS:-
This is an Appeal by the Assessee agitating the Order by the Commissioner (Appeals)-2, Coimbatore (‘Commissioner (Appeals)’ for short) dated 28-2-2017, dismissing the assessee’s appeal contesting its assessment under section 143(3) of the Income Tax Act, 1961 (‘the Act’ hereinafter) for the assessment year (assessment year ) 2012-13 vide order dated 25-3-2015.
2. The short question arising in this appeal is whether the ‘revised’ return furnished by the assessee on 21-10-2013 is a valid return in law. This is for the reason that the impugned assessment was made only in pursuance thereto, by issue of notice under section 143(2) on 8-9-2014. It may be relevant to, before we proceed to discuss the issue arising, state the background facts of the case, which are admitted and undisputed. The asses see-individual filed his return of income for the year on 29-9-2012, declaring nil income (copy on record). This was followed by a return on 21-10-2013 (copy of acknowledgment on record), again, at nil income, claiming a tax refund on account of tax deducted at source (TDS) at Rs. 92,724; there being, as it appears, no change in the configuration of the income returned. Assessment under section 143(3) was framed on 25-3-2015 at a income of Rs. 1,37,99,763. The assessee, in appeal, raised several grounds, challenging the additions made in assessment. Additional grounds were also raised, claiming that the impugned assessment is liable to be quashed as the ‘original’ return, filed on 29-9-2012, was not a return under section 139(1) but only a return under section 139(4), being filed after the due date of filing the return under section 139(1) i.e., on 31-7-2012 (Addl. Gd.1). Only a return filed under section 139(1) or that furnished in response to a notice under section 142(1), could be revised under section 139(5). The sub-sequent return filed on 21-10-2013 is, therefore, an invalid return. That being the case, no assessment under section 143(3) in its respect could be made. The learned Commissioner (Appeals), admitting the additional grounds challenging the validity of the assessment, in-as-much as the same raised a legal issue requiring (apparently) no investigation of facts, however, held in the negative. The assessee is a partner in a partnership firm ‘M/s. Venkatam Construction Engineers’ (VCE); the fact of his being a partner being also mentioned in the return filed originally. The return in case of a partner of a partnership firm, whose accounts are to be audited, the due date of filing of return under section 139(1) is that of the firm itself, i.e., 30th September of the following year, or 30-9-2012 for assessment year 2012-13. Even the return for assessment year 2011-12 was filed by the assessee on 29-9-2011 only. The original return filed on 29-9-2012 was thus a valid return under section 139(1), and not a return under section 139(4) (refer para 4 of the impugned order). He, then, proceeded to decide the assessee’s appeal on the merits of the additions made (vide paras 4.1 & 4.2 of the order). The assessee’s claim being denied thus, he is in second appeal, raising the following grounds :–
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